The Federal High Court in Abuja on Tuesday, August 2, 2016, validated the order it gave on July 20, 2016, authorising the Economic and Financial Crimes Commission, EFCC, to seize assets belonging to the governor of Ekiti State, Ayodele Fayose, pending the completion of an ongoing investigation.
Justice Nnamdi Dimgba ruled that the order of interim forfeiture did not violate the provisions of Section 308 of the 1999 Constitution, which confers immunity from civil and criminal proceedings on a governor.
“It is my considered opinion that the order of court, made on July 20, 2016, in respect of some property of the applicant, and within the limited scope and duration within which it was obtained, was duly procured and does not offend the provision of the Constitution referred to.
“Although Section 308 of the Constitution serves to isolate governors of states from the distraction of litigation and legal proceedings to enable them to attend to official responsibilities, it should not be interpreted in such a way as to defeat the fight against corruption, to mean that the EFCC or other investigating agencies cannot take a peep into the assets or personal accounts of a serving governor in the execution of a strictly worded and mutually supervised interim attachment orders for the purposes of obtaining evidence for use in future when the immunity has lapsed.”
The judge, however, said the order of interim forfeiture made on July 20 had a lifespan of 45 days from the date it was issued.
He ordered that the EFCC must conclude its investigation within the 45-day lifespan of the order, adding that the order would automatically dissolve if the EFCC failed to serve a motion on notice seeking its extension on Fayose at least five days to its expiration.
Justice Dimgba delivered his ruling on Tuesday shortly after hearing an application by Fayose’s lawyer, Chief Mike Ozekhome (SAN), asking the court to set aside the interim forfeiture orders on 10 grounds.
The EFCC’s lawyer, Mr. Andrew Akoja, opposed the application, insisting that the commission had violated no law by obtaining the order.
Fayose’s assets affected by the interim forfeiture orders re-affirmed by the court on Tuesday are four sets of four-bedroomed apartments at Charlets 3, 4, 6 and 9; Plot 100, Tiaminu Savage, Victoria Island, Lagos.
The two others are at 44 Osun Crescent, Maitama, Abuja, and Plot 1504, Yedzeram Street, Maitama, Abuja.
The EFCC claimed in its affidavit accompanying an ex parte application through which it obtained the interim forfeiture order that the property was acquired with proceeds of fraud which Fayose allegedly got through kickbacks from contractors and other alleged fraudulent means.
The EFCC also said the funds used for the purchase of the property were said to be drawn from the sum of N1,219,490,000 which was said to be part of the N4,745,000,000 allegedly stolen from the treasury of the Federal Government through the Office of the National Security Adviser.
But Fayose’s lawyer, Ozekhome, filed a motion on notice on July 21, asking the court to discharge the order on 10 grounds.
Among the grounds was that the ex parte motion with number, FHC/ABJ/CS/480/2016, filed on July 12, 2016, and through which the EFCC obtained the July 20 order, “is unconstitutional, incompetent and constitutes a gross abuse of court process.”
Fayose’s lawyer also argued that the court lacked jurisdiction to entertain and/or proceed to grant the interim order.
Ozekhome also argued that by virtue of the immunity enjoyed by Fayose as the sitting Governor of Ekiti State under Section 308 of the Constitution, he (Fayose) “cannot be proceeded against in a court of law.”
He added, “The court ought properly in the circumstance to have dismissed and/or set aside, in its entirety, the said suit numbered, FHC/ABJ/CS/480/2016, and upon which the motion ex parte filed on July 12, 2016, for an interim order of attachment has been sought and same granted.
“There is absolutely no law, statutory or otherwise, that justifies the action taken by the respondent against the applicant (Fayose) that can stand in the face of the immunity granted the applicant by the Constitution.”
In dismissing Ozekhome’s contention in his ruling on Tuesday, the judge further noted that interpreting Section 308 of the Constitution “in absolute sense, with all or nothing approach” as canvassed by Fayose’s lawyer “will do great adversity to the society.”
The judge added, “In the light of the above, I hold that the applicant is not entitled to the reliefs sought and they are hereby refused.
“However, in the interest of justice and not to appear to make a mockery or nonsense of the immunity clause, I hold that the interim attachment order of July 20, 2016, granted by this court in favour of the respondent (EFCC) shall last for 45 days as the court had already ordered, within which the respondents must conclude their investigation in respect of the property, at the end of which every encumbrance on the property arising from the order of court, must abate.
“I order that in the event that the respondent may wish to renew the interim attachment order, as they are entitled to, they must serve the motion to that effect on the applicant not later than five days to the expiration of that order, without which the order shall stand abated.
